Judge denies request for preliminary injunction for parents in Bow pink wristband lawsuit
Attorneys from the Institute for Free Speech and attorney Richard J. Lehmann filed the lawsuit in September in U.S. District Court in Concord on behalf of Kyle Fellers, Anthony 'Andy' Foote, Nicole Foote and Eldon Rash, who claim their rights were violated when they were barred from school grounds following a silent protest of a transgender athlete playing in a girls soccer game in September.
The suit names Bow school administrators, including Superintendent Marcy Kelley, Principal Matt Fisk and Athletic Director Mike Desilets. NHIAA soccer referee Steve Rossetti was originally included in the suit, but both sides agreed to dismiss him from the matter. A two-day hearing on the complaint was held in November before Judge Steven McAuliffe.
The lawsuit alleges that the defendants violated the plaintiffs' First Amendment rights by banning them from school grounds and events for wearing pink wristbands with 'XX' symbols — a reference to the female chromosome structure — as a form of silent protest during a Bow High School girls soccer game against Plymouth on Sept. 17.
According to court filings, the plaintiffs wore the wristbands in protest of a policy allowing transgender athlete Parker Tirrell, identified in court paperwork as a 'biological male,' to play on the Plymouth girls team.
On Monday, Judge McAuliffe issued a ruling denying the request for a preliminary injunction.
'This case presents an increasingly common, and commonly difficult constitutional problem: When may public school authorities limit symbolic speech during school athletic contests to protect students from perceived harm?' McAuliffe wrote. 'When protected rights clash, as they do here — when opposing sides each have a point, but compromise proves elusive — courts must strike the balance and explain why, under the particular circumstances presented, the law directs that one right must give way to another.'
Attorney Endel Kolde of the Institute for Free Speech said he and his clients 'strongly disagree' with the court's opinion.
'This was adult speech in a limited public forum, which enjoys greater First Amendment protection than student speech in the classroom,' Kolde said in an email. 'Bow School District officials were obviously discriminating based on viewpoint because they perceived the XX wristbands to be 'trans-exclusionary.' We are still evaluating our options for next steps."
A new state law banning transgender girls from playing girls school sports in grades 5-12 is facing a lawsuit claiming it is unconstitutional.
In his ruling, McAuliffe wrote the First Amendment means that government has 'no power to restrict expression because of its message, its ideas, its subject matter, or its content.' 'However, this principle, like other First Amendment principles, is not absolute,' McAuliffe wrote. '(T)he First Amendment does not guarantee the right to communicate one's views at all times and places or in any manner that may be desired.'
McAuliffe pointed out the plaintiffs argued the Bow School District could not 'reasonably conclude that their symbolic wristbands communicated a message demeaning the gender identities of transgender students in general or Parker Tirrell in particular,' or was specifically aimed at Tirrell.
'The court disagrees,' McAuliffe wrote. 'The School District understood that in the broad context of opposition to transgender girls' participation in girls' sports, the symbolic message included a demeaning and harassing assertion — an assertion of inauthenticity, falsity and nonexistence with respect to some students' core and immutable characteristics.
'And, it seems evident that had the symbols been worn by students in school or during school activities, they could be barred as reasonably interpreted in context to convey a harassing, demeaning message likely to have a serious negative psychological impact on students who identify as transgender.'
McAuliffe admitted plaintiffs said they did not mean to 'target' or harass Parker Tirrell during the soccer match, but simply oppose transgender girls playing on girls' sports teams, based upon reasonable concerns related to unfair competition, risk of injury, and lost opportunities for their daughters.
'Plaintiffs also correctly point out that many people agree with their position (witness the New Hampshire legislation barring transgender participation) or at least agree that some system that is capable of allowing transgender participation but also mitigates the risk of injury and potential physical dominance should be developed,' McAuliffe wrote. 'Context is everything. The evidence of record amply supports the school district's view that the XX symbol on a pink background is well known among those interested in the transgender sports issue, and it is associated with other meanings that are far more offensive than those ascribed by plaintiffs.
'The message generally ascribed to the XX symbol, in a context such as that presented here, can reasonably be understood as directly assaulting those who identify as transgender women.'
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